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Civil Appeal No. 91 of 1981, decided on 16th November, 1985.

(On appeal from the judgment of the Lahore High Court, dated 4‑4‑1981, in W.P. 10591 of 1980).

‑‑‑Art. 185(3)‑‑Evidence Act (I of 1872), S. 116‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑‑Leave to appeal granted to examine contention whether plea of estoppel under S. 116, Evidence Act, 1872 was not available to landlord against tenant whose denial of landlord's title was neither false nor contumacious but was based on admitted and proved fact that property in dispute, during continuance of tenancy had been found to be a hidden evacuee property and was transferred by Settlement department to petitioner/ tenant and validity of P.T.D. issued to him in respect of said property was never challenged by respondent /landlord before any forum.

‑‑‑S 20‑‑Transfer of property by evacuee‑‑Restriction on‑‑Status of property‑‑Transaction of sale transferring title to property from evacuee owner‑‑Sale‑deed executed and presented for registration in January 1P47 but copied into registration book on 8th March, 1947‑‑Held, it was difficult to accept assertion that property became evacuee and available in compensation pool for transfer by Settlement authorities in circumstances.

Ataullah Malik v. The Custodian Evacuee Property and others PLD 1964 S C 236 rel.

‑‑‑S. 13‑‑Evidence Act (I of 1872), S. 116‑‑Constitution of Pakistan (1973), Art. 185‑‑Ejectment on ground of default‑‑Tenant executing rent note and after paying rent for sometime, denying relationship of landlord and tenant on plea that property had been transferred to him by Settlement authorities‑‑Tenant estopped from questioning title of his landlord during subsistence of tenancy‑‑Rent Controller without going into question whether property was evacuee and validly transferred to tenant, ordered ejectment which was upheld by high Court‑‑Leave to appeal granted to consider contention of tenant that plea of estoppel was not available to landlord‑ against tenant whose denial of landlord's title was neither false nor contumacious but was based on admitted and proved fact that property in dispute, during continuance of tenancy had been found to be a hidden evacuee property and was transferred by Settlement department to tenant and validity of P.T.D. issued was never chellenged by landlord before any forum‑‑Premises on which above contention was based not having been substantiated from record, it was not possible to hold that denial of title of landlord was based on admitted facts‑‑Appellant having entered in occupation of demised property as tenant and that tenancy still subsisting, held, was rightly estopped from questioning title of landlord and plea‑&‑that right at inception of tenancy, property was an evacuee property‑‑New issue depending on factual adjudication which was not raised at any earlier stage in any proceedings and on which there was no determination by any Court below, not permitted to be raised in appeal before Supreme Court‑‑Order of Rent Controller upheld‑‑Appeal dismissed leaving appellant at liberty to seek appropriate remedy on question of title to property in dispute according to law.

Kalimullah v. Amin Hazin and others 1975 S C M R 77 ref.

‑‑‑Art. 185‑‑Appeal to Supreme Court‑‑No issue‑‑Depending on factual adjudication, which was not raised at any earlier stage in any proceedings and there was no determination by any Court below on that issue‑‑Not allowed to be raised at appeal stage.

Zakiuddin Pal, Senior Advocate Supreme Court with Kh. Mushtaq Ahmad, Advocate‑on‑Record for Appellants.

Muhammad Afzal Khan, Advocate Supreme Court with Muhammad Aslam Jafri, Advocate Supreme Court for Respondent No. 1

Ex parte for Respondents Nos. 2 and 3.

Date of hearing: 16th November, 1985.

‑Appellant is aggrieved by an order of his eviction initially passed by the Rent Controller on 7th September, 1977, and upheld in subsequent proceedings as having been validly passed.

2. The disputed premises consists of House No. 64, situate in Street No. 10, Akbari Road, Lahore. It is common ground that the appellant was inducted into the premises by one Mairajuddin, father of respondent No. 1 (having died during the proceedings and succeeded by the latter), as a tenant on a monthly rental of Rs.35 in terms of a written Rent Note, dated 15th April, 1967, exercised between the parties. As the appellant stopped paying rent after 14th May, 1969, Mairajuddin instituted ejectment application against him on the sole ground of default in the payment of rent. The appellant resisted the application for his ejectment and denied the relationship of landlord and tenant between the parties, on the plea that the disputed house had been transferred to him by the Settlement authorities under Settlement Scheme by virtue of which the title thereto vests in him. The Rent Controller, accordingly tried the issue as to relationship of landlord and tenant between the parties as a preliminary issue. In support of his case the landlord relied on the Rent Note, the certified copy of the registered sale‑deed through which he had acquired the property before 1st March, 1947, from its Hindu owner and the fact that the appellant was paying rent to him as his landlord for some time. As the appellant admitted the execution of the rent note and the payment of rent to the landlord, the learned Rent Controller decided the issue in favour of the landlord. He relied on the dictum laid down by this Court in Kalimullah v . Amin Hazin and others 1975 S C M R 77, holding that the tenant was estopped from questioning the title of his landlord during the subsistence of the tenancy and refused to go into the question whether the property was evacuee 'and validly transferred to appellant. The Rent Controller having resolved the preliminary issue‑ found no difficulty in passing the order of ejectment, as on admitted facts no rent was paid by the appellant for the period in question.

3. Against this order the appellant went in appeal to the District Judge, Lahore, who agreed with the view taken by the Rent Controller and dismissed the appeal of the tenant.

4. Being dissatisfied, the tenant challenged the order of eviction passed against him in a constitutional petition before the Lahore High Court, which was dismissed, vide order, dated 4th April, 1981.

5. Leave was granted to examine the contention whether the plea of estoppel under section 116 of the Evidence Act was not available to the landlord against the tenant, "whose denial of the landlord's title was neither false nor contumacious but was based on the admitted and proved fact that the property in dispute, during the continuance of the tenancy had been found to be a hidden evacuee property and was transferred by the Settlement Department to the petitioner/ tenant and the validity of the P.T.D. issued in respect of the said property was never challenged by the respondent /landlord before any forum."

6. Mr. Zakiuddin Pal, learned counsel appearing for the appellant has reiterated the aforesaid contention noticed in the leave granting order and has urged that there was no legal embargo on the tenant, in the circumstance of this case, to challenge the title of the landlord and. the tenancy. He submitted that the sale of the property, through which the landlord claimed title took effect after the crucial date, i.e. 1st March, 1947, and, therefore, the property in question was unaffected by it and continued to retain its status as evacuee property in view o: the fact that its Hindu owner had migrated to India. According to the learned counsel as a result of proper proceedings taken by the relevant Authorities, this property was discovered to be hidden evacuee property and was transferred to the, appellant by the Settlement authorities.

7. The learned District Judge in his order has stated the relevant particulars with regard to the transaction of sale by which Mairajuddin acquired title to the property from its Hindu owner which are not disputed before us. According to these details, the sale in favour of Mairajuddin took place on 20th January, 1947. The instrument of sale was executed by the vendor on 17th January, 1947, and was presented for registration on 20th January. 1947, although the document was entered on the relevant register on 8th May, 1947. On similar facts, where deed of transfer was executed and presented for registration before, but was copied into registration book after 1st March, 1947, it was held by this Court in Ataullah Malik v. The Custodian Evacuee Property and others P L D 1964 S C 236, that such transaction did not require confirmation. In the premises it is difficult, on the facts stated, to accept the assertion that the property became evacuee property and available in the compensation pool for transfer by the Settlement Authorities.

8. Learned counsel referred us to the order of Deputy Settlement Commissioner, dated 22nd March, 1971 (page 54 of the paper book) in which reference has been made to proceedings taken for holding the property as hidden evacuee property. We are, however, not satisfied by merely looking into this document if notice was given to Mairajuddin or he was in any other way associated with these proceedings, before he was deprived of his valuable rights in the property.

9. In view of the above, the premises on which the contention of the appellant that the denial of the title of the landlord "was neither false nor contumacious but was based on admitted and proved facts" as to the "hidden" evacuee nature of the property, wholly falls to the ground. On the present record it is not possible to hold that the denial of the title of the landlord was based on admitted facts.

10. In consonance with the view taken in Kalimullah's case, already referred to, we are clear in our mind that the appellant having entered in the occupation of the premises as tenant through Mairajuddin as his landlord, which tenancy qua him still subsisted, was estopped by virtue of section 116, Evidence Act, from questioning the title and to plead that right at the inception of the tenancy the property was evacuee property.

11. Mr. Zakiuddin Pal, however, submitted that the sale‑deed on which respondents rely was not executed by the true owner of the property whose name is shown in the P.T.D. issued in favour of the appellant. It seems to us that this plea was not raised at any earlier stage in any proceedings and in any case there is no determination by any Court below on this issue. We would not permit a new issue depending on factual adjudication to be raised at this stage. Indeed we observe that the Rent Controller very properly declined to enter into the question of title and by implication, left the aggrieved party to approach the appropriate forum for rights arising out of such title. Since there is no final adjudication, on the question of title, nor have we made such a determination, we may say by way of clarification, that the appellant will be at liberty to seek appropriate remedy open to him according to law in this behalf.

12. With these observations this appeal is dismissed with no order as to costs.

M.I. Appeal dismissed.

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